Product Liability Cases Research Articles

Exploring the Relationship between Consumer Protection and Product Liability: Civil and Islamic Perspectives

Consumer protection is an aspect which aims to ensure that consumers are always given adequate protection from a legal perspective and also to increase the level of consumers’ trust in the quality of goods and services, which will, in turn, contribute to the economic growth of a nation. However, today, issues surrounding product liability cases are no longer uncommon, where consumers or third parties face the risk of suffering injury or property damage due to the existence of defects in a particular product. Thus, the main objective of this study is to analyze the relationship between consumer protection and product liability from both civil and Islamic perspectives. The type of research being carried out is doctrinal legal research. The data sources, including case law and statutory provision, are analyzed using content and critical analysis methods. The results show that according to civil and Islamic perspectives, consumer protection in the context of product liability plays a crucial role in conferring legal protection to consumers who are adversely affected by the use of particular products that pose a risk to health and safety. Further, the authors expect that the results of this study shall contribute new and significant knowledge by proving that the aspect of consumer protection is not only related to product liability issues from a civil perspective, but it is also can be evaluated from the Islamic perspective, which the earlier researchers have rarely discussed.

The Trilogy of Personal Jurisdiction and the Importance Of Ford

Litigants and judges alike have struggled to understand and resolve the parameters of personal jurisdiction, particularly in product liability cases. This results in significant costs and time which is likely to be of little benefit to anyone. Much of this confusion arises from two problems: (1) most of the early Supreme Court decisions on personal jurisdiction arose from contractual disputes; and (2) when the economy expanded after World War II, and new automobiles, commercial aircraft, appliances, and other complex products appeared, the Court’s attempts to resolve personal jurisdiction issues were unsuccessful. For over three decades, the Supreme Court failed to produce a clear majority opinion, while at the same time, these cases were becoming more common and complex. In the past decade, however, the Court has quietly produced a trilogy of virtually unanimous opinions that offer pathways to resolve personal jurisdiction disputes. These decisions will be particularly useful in product liability cases of all kinds, which often involve suit-related events occurring across multiple jurisdictions. Once lawyers and judges understand this clarified framework, it should become easier for plaintiffs to make better decisions about where to bring their case and enable both plaintiffs and defendants to spend less time and expense litigating personal jurisdiction disputes.

The Impact of the Rome II Regulation on Product Liability Claims: An Analysis of Case Law from European Jurisdictions

The Rome II Regulation is a legal framework that pertains to the determination of the applicable law in cases involving non-contractual obligations, which encompasses claims related to product liability. This article undertakes an analysis of the effects of the Rome II Regulation on claims related to product liability within various jurisdictions across Europe. This article critically assesses the impact of the Rome II Regulation on the resolution and litigation patterns of product liability claims by analysing case law from multiple jurisdictions. The article delves into the matters pertaining to jurisdiction, choice of law, and damages, while also scrutinising any challenges or controversies that have emerged in the implementation of the Rome II Regulation in product liability cases. The analysis demonstrates that the Rome II Regulation has effectively enhanced the level of certainty and predictability in the determination of the applicable law for product liability claims. However, it has also presented certain difficulties, including the intricate nature of the choice of law rules and the potential for engaging in forum shopping. The article presents potential strategies to address these difficulties and ultimately asserts that the Rome II Regulation has generally yielded favourable outcomes in the settlement of product liability disputes within European jurisdictions.

When Federal Standards Crash and Burn: The Need to Distinguish Aviation Product Liability Claims from In-Air Operations Cases

If you are injured in an aviation disaster or lose a loved one in a plane crash, may you seek recovery under state law? Do federal regulations provide adequate opportunities to compensate aviation crash victims? These are questions few people think to ask themselves. A more common query is what entity regulates the more than 16 million flights that occur yearly in the U.S., and how do you know whether the aircraft you fly on are safe? The tragic Boeing 737 MAX crashes initiated a federal oversight investigation into the Federal Aviation Administration (FAA). Industry whistleblowers revealed severe lapses in the FAA’s aircraft certification regime and a culture that promoted unsafe practices in aircraft design and manufacturing. Despite crucial reforms, the ability of uniform federal standards to protect aviation consumers is under fire. In a majority of U.S. jurisdictions, the Federal Aviation Act and associated federal regulations preempt all state law claims in aviation safety cases. The effect of this approach—few plaintiffs recover in aviation product liability suits, and the families of aviation crash victims go uncompensated. However, in Sikkelee v. Precision Airmotive Corp., the Third Circuit offered a new approach that advocates for field preemption for in-air operations claims but allows recovery under state law for aviation product liability cases. This approach adequately compensates aviation crash victims without undermining the FAA’s extensive and effective in-air regulatory scheme. This Comment addresses recent reforms to the FAA’s aircraft certification program and the ongoing circuit split regarding federal preemption of aviation safety claims. Further, this Comment seeks to analyze the fundamental differences between in-air operations regulations and rules governing aircraft design and manufacture to explain why different treatment of these claims is warranted. Ultimately, this Comment advocates for the Sikkelee methodology to provide ample opportunity for plaintiff recovery without unnecessarily undermining FAA regulatory authority.

Inferior Vena Cava Filter Litigation Review: An Analysis of Medicolegal Cases Pertaining to Inferior Vena Cava Filters

PurposeTo identify and analyze all medical malpractice and product liability lawsuits pertaining to inferior vena cava (IVC) filters published within a well-recognized legal research database. Materials and MethodsLexisNexis, a legal research database, was used to retrieve cases that mentioned harm from IVC filters, or lack thereof, as the cause for legal action. A total of 672 cases were analyzed for type of case (medical malpractice or product liability), filter model implanted, filter complications, court decisions, and settlement payments if any. ResultsOf 95 analyzed cases, 20 (21.1%) were medical malpractice cases and 75 (78.9%) were product liability cases. C.R. Bard was the manufacturer associated with the most lawsuits (n = 41, 48.8%). The most litigious filters were the G2 filter from C.R. Bard (n = 17, 20.2%) and Greenfield filter from Boston Scientific (n = 17). The most common complications were IVC penetration (n = 26, 29.9%), filter migration (n = 26, 29.9%), filter fracture (n = 23, 26.4%), and tilt (n = 16, 18.4%). The number of product liability cases has increased from accounting for 25.0% (2 of 8) of filter lawsuits between 2000 and 2010 to 83.9% (73 of 87) during 2011–2020. Of the 20 medical malpractice claims, 9 (45%) were filed for failure to place a filter. One physician was found liable for filter-related complications by a state court in 2014. ConclusionsThe majority of recent IVC filter–related lawsuits are filed against manufacturers on the basis of product liability claims, with the main litigious filters being the G2 and Greenfield filters. Most cases resulted in rulings for physicians or manufacturers. Some were filed against physicians for filter-related complications or for failure to place an IVC filter.

PRODUCT LIABILITY: A CHANGING PLAYING FIELD?

Product liability in South Africa has historically been classified as falling within the sphere of the law of delict generally; with fault being a necessary element for liability. However, this historical classification has changed with the dawn of a new era in consumer law. The Consumer Protection Act 68 of 2008, and more specifically section 61, seems to impose liability without fault on certain parties for harm caused by their goods or products. Section 61, on the face of it, appears to be extremely beneficial for consumers who wish to tackle larger companies and defendants in product liability cases. In practice, though, this may not be the case as section 61 shares a number of similarities with the European Directive on Product Liability of 1985 and the United Kingdom Consumer Protection Act 1987, neither of which has been entirely successful in eliminating fault. This article considers the common-law system which has been applied to product liability cases in the past, and thereafter considers the provisions of the Consumer Protection Act which amend the principles applicable, in order to determine whether section 61 will benefit consumers. The article will further look at how similar provisions in Europe have been interpreted and applied by courts in order to assess the potential problems which might arise fromsection 61 in South Africa. Once these problems have been identified, this article will address a provision which is unique to the South African statute which may go some way in bringing about a different result in South Africa, thereby avoiding the problems faced in Europe.

Mesh implants: Women launch claims against NHS trusts and surgeons for failing to warn of risks

Hundreds of women in England and Wales who suffered permanent injury after pelvic mesh implant surgery are to launch claims against NHS trusts and surgeons who operated at private hospitals for failing to inform them of the risks. Product liability claims are also going ahead against Johnson and Johnson and other manufacturers, alleging that their pelvic mesh products were defective. Around 40 clients of Thompsons, a leading law firm involved in the mesh litigation, are mounting product liability cases. The move follows a settlement by Johnson and Johnson last month of tens of millions of pounds for hundreds of women in …

Transparency as Justice: The Ethics of Public Attorneys and Judicial Seals

In 2004, the State of West Virginia settled a lawsuit against Purdue Pharma LP accusing the company of pushing pills by understating the addictive effects of OxyContin. As a result, the judge in the case sealed his ruling denying Purdue’s motion to dismiss. The seal was not vacated until the United States was enveloped by the opioid crisis twelve years and 245,000 overdose deaths later. The pattern nearly repeated itself in 2019 until the United State Court of Appeals for the Sixth Circuit vacated a judicial seal in In re National Prescription Opiate Litigation, allowing press access to information in discovery and in the pleadings. Such seals in mass products liability cases stretch back decades, but they are getting renewed attention based on the Sixth Circuit’s pattern tightening requirements for such seals in Shane Group, Inc. v. Blue Cross Blue Shield of Michigan. This article addresses the duties of public sector attorneys in situations involving judicial seals of information relevant to the public health and safety. Although the Supreme Court has held that seals may only issue after the trial court balances the public interest in disclosure against the private interest in confidentiality, courts typically grant an uncontested motion to seal without performing it. Because the public interest is in favor of such disclosures — particularly where the government is a party — government attorneys have a duty to ensure the public release of such data. Thus, reform is needed through the imposition of legal or ethical requirements that ensure this result and, by extension, require public servants to protect the public.

Oh' the Places You Could Go: Corporate Registration as Consent to General Jurisdiction in Multi-Defendant Litigation

Throughout the history of the United States, asserting personal jurisdiction over a corporate defendant has become more restrictive. Since Pennoyer, there were many interpretations of where a corporate defendant should expect to defend a suit. The United States Supreme Court in International Shoe and personal jurisdiction cases after that attempted to clarify the constitutionality of asserting personal jurisdiction over a corporate defendant. The standards outlined in Daimler assured corporate defendants that they should expect to defend a suit in a state where they are essentially at home. The restrictive standards for asserting personal jurisdiction over a corporate defendant have allowed room for arguments that corporate registration will suffice as consent to general jurisdiction. Courts around the nation have recognized this argument; however, many courts have not. This tactic in establishing personal jurisdiction is prevalent and has led injured plaintiffs' attempts to assert jurisdiction over a corporate defendant in places they could go for jurisdiction to stick. In multi-defendant product liability or exposure cases, plaintiffs have argued that they are not allowed to obtain full relief in one suit from corporate defendants due to lack of personal jurisdiction for some of the corporate defendants. States such as Pennsylvania have written statutory provisions that protect plaintiffs by explicitly requiring a corporation to consent to general jurisdiction in the state when they register to do business. This Article follows the history of the interpretation of general personal jurisdiction in the United States and seeks to examine multi-defendant cases around the nation where the registration-as-consent theories and other tactics that are introduced to assert personal jurisdiction over a corporate defendant.

Preempting the Artificially Intelligent Machine

The medical device industry and new technology start-ups have dramatically increased investment in artificial intelligence (AI) applications, including diagnostic tools and AI-enabled devices. These technologies have been positioned as reducing climbing health costs while simultaneously improving health outcomes. Technologies like AI-enabled surgical robots, AI-enabled insulin pumps, and cancer detection applications hold tremendous promise, yet without appropriate oversight will likely pose major safety issues. While preventative safety measures may reduce risk to patients using these technologies, effective regulatory-tort regimes also permit recovery when preventative solutions are insufficient. The Food and Drug Administration (FDA), the administrative agency responsible overseeing the safety and efficacy of medical devices, has not effectively addressed AI system safety issues for its clearance processes. If the FDA cannot reasonably reduce the risk of injury for AI-enabled medical devices, injured patients should be able to rely on ex post recovery options, as in products liability cases. However, the Medical Device Amendments Act (MDA) of 1976 introduced an express preemption clause that the U.S. Supreme Court has interpreted to nearly foreclose liability claims, based almost completely on the comprehensiveness of FDA clearance review processes. At its inception, MDA preemption aimed to balance consumer interests in safe medical devices with efficient, consistent regulation to promote innovation and reduce costs. Although preemption remains an important mechanism for balancing injury risks with device availability, the introduction of AI software dramatically changes the risk profile for medical devices. Due to the inherent opacity and changeability of AI algorithms powering AI machines, it is nearly impossible to predict all potential safety hazards a faulty AI system might pose to patients. This article identifies key preemption issues for AI machines as they affect ex ante and ex post regulatory-tort allocation, including actual FDA review for parallel claims, bifurcation of software and device reviews, and dynamics of the technology itself that may enable plaintiffs to avoid preemption. This Author then recommends an alternative conception of the regulatory-tort allocation for AI machines that will create a more comprehensive and complementary safety and compensatory model.

Product liability and protection of EU consumers: is it time for a serious reassessment?

The European Union (EU) has not enacted a coherent and fully-fledged product liability regime. At the substantive level, the Product Liability Directive – adopted in 1985 – is the only piece of legislation harmonising the laws of the Member States. At the private international law level, the special choice-of-laws provision in the Rome II Regulation coexists with the general rules in the Brussels I-bis Regulation. Cross-border product liability cases are therefore subject to different pieces of legislation containing either “general” or “specific” provisions. In turn, such general and specific provisions do have their own rationales which, simplistically, can be inspired by “pro-consumer”, “pro-producer”, or more “balanced” considerations, or can be completely “indifferent” to consumer protection. This article examines the interactions between the Directive, the Rome II and the Brussels I-bis Regulations in cross-border product liability cases. The aim of this article is to assess whether the piecemeal regime existing at the EU level risks undermining the protection of EU consumers. The analysis demonstrates that the regime is quite effective in guaranteeing an adequate level of consumer protection, but reforms are needed, especially to address liability claims involving non-EU manufacturers or claims otherwise connected to third States, without requiring a complete overhaul of the EU product liability regime.

Allocation of Blame After A Safety Incident

Background A significant body of evidence has accrued concerning how people form perceptions and allocate responsibility (e.g., Karlovac & Darley, 1988; Pennington & Hastie, 1986). Human factors researchers have extended this line of research by examining how people allocate blame in product liability cases involving injury or death. Collec-tively, these studies have investigated how perceptions of blame are assigned in a broad range of contexts and to an array of potentially blameworthy entities, including manu-facturers, retailers, consumers, employers and employees, to name but a few. The present study builds on previous research in this area by systematically varying information pertaining to a realistic, but fictitious, incident in which a worker (depicted as experienced vs. inexperienced) is killed when his hand comes into contact with an energized bus bar while feeding electrical wiring into a ground-based electrical pedestal. We systematically manipulated quality of the warning (an actual warning on a commercial product vs. a re-de-signed alternative) and the fatally injured worker’s on-the-job experience (less than one month vs. 4 years). Previous research has shown that quality of warning interacts with efforts on the part of various potentially blameworthy enti-ties (e.g., manufacturers, distributors, employers)to do their part in disseminating warning materials down the chain to end users (Kalsher, Viale & Williams, 2003). We manipu-lated the worker’s level of experience to determine its im-pact on the relative ratio of blame attributed to the manu-facturer and the fatally injured worker. We predicted the “experienced” worker would receive greater blame than the “inexperienced” worker, independent of warning quality. Results and Discussion Overall, participants apportioned most of the blame to the electrician ( M=58.60, SD = 26.07), who was depicted as having failed in his duty to secure protective covers over the energized bus bars. The manufacturer received the next highest percentage of blame ( M=19.87, SD=24.33), fol-lowed by the decedent ( M=14.60, SD=20.02) and job fore-man ( M=14.00, SD=16.70). Manufacturer blame was entered as the dependent vari-able in a 2 (warning: original, re-designed) by 2 (worker experience: under one month, four years) ANOVA. The model was significant, F(3,182)=4.73, p<0.01, eta-squared = 0.07. The effect of warning quality on blame allocated to the manufacturer was significant, F(1,182)=13.35, p<0.001, eta-squared = 0.07, indicating that manufacturers received significantly less blame ( M=13.86, SD=20.47) for the accident given the (better) re-designed warning than they did in the original (poor) warning condition ( M=26.71, SD=26.58). Neither the effect of worker experience nor the interaction of experience and warning condition were sig-nificant ( ps>0.10). The ANOVA described above was replicated using blame apportioned to the decedent as the dependent variable. The model was not significant ( p>0.10), indicating that neither warning quality nor level of experience influenced the amount of blame apportioned to the fatally injured worker. These findings offer the following insights. Contrary to our predictions, the worker’s level of experience did not influence allocations of blame, including to the manufac-turer. Warning quality, however, did influence how blame was apportioned, in particular to the manufacturer. Conse-quently, these findings add to the growing body of evidence suggesting that safety sells. Specifically, evaluators con-sistently assign less blame to manufacturers when they are perceived as adequately warning about their products’ re-sidual hazards.

The Rise of Self-Driving Cars: Is the Private International Law Framework for non-contractual obligations posing a bump in the road?

This article focusses on some implications related to the commercialisation of self-driving or autonomous cars. Such vehicles are no longer a mere futuristic idea. They could soon be available on the market. Society in general and the applicable rules in particular will undergo a transformation following the introduction of autonomous vehicles. Despite the many benefits, self-driving cars also pose several challenges. These do not only relate to technical aspects but also to the influence of the autonomisation of traffic on infrastructure and employment in different sectors. More importantly, several legal challenges will need to be addressed as well before society will be able to fully enjoy the benefits of self-driving cars. The question as to who should be held liable for damage caused by self-driving car has already been addressed in academia. Less attention has been devoted to the relationship between autonomous vehicles and the existing private international law rules in the European Union. Although the application of the current jurisdictional and conflict of laws rules does not present problems, the membership of some EU Member States of the 1971 Hague Traffic Accidents Convention and/or the 1973 Hague Products Liability Convention impedes the harmonisation of conflict of laws rules in non-contractual matters as envisaged by the Rome II Regulation. In cases concerning liability arising from traffic accidents and in product liability cases, different Member States courts sometimes apply a different national law. This reduces foreseeability and legal certainty.

How Safe is Safe Enough? Acceptable Safety Criteria From an Engineering and Legal Perspective

Manufacturers have a vested interest in the safety of their customers, and in protecting their reputation for producing safe products. An additional incentive to produce safe products is avoiding liability when their product is involved in an accident or mishap that results in personal injury and/or property damage. While it is often said that one must never compromise on safety, the fact remains that any product must necessarily be a balance between the level of safety desired and the cost and performance impact of achieving that level of safety. The product manufacturer must make a determination: Is this product (or technology) acceptably safe within the context of current consumer expectations as well as the legal/regulatory framework? Is the residual risk tolerable? This paper presents a methodology to address those questions by reviewing the publicly available information of a recent automotive product liability case, and evaluating whether the product design met current legal and safety engineering best practices.

Analysis of acetal toilet fill valve supply line nut failure

In recent years, there has been a rise in the number of product liability cases involving the failure of toilet water supply line acetal plastic nuts. These nuts can fail in service, causing water leaks that result in significant property and financial losses. This study examines three possible failure modes of acetal plastic toilet water supply nuts. The three failure modes tested were all due to over load failure of the acetal nut and are as follows: (1) Overtightening of the supply line acetal nut, (2) Supply line lateral pull and, (3) Embrittled supply line lateral pull. Additionally, a “hand-tight” torque survey was conducted. The fracture surfaces and characteristics of these failure tests were examined with Stereo Microscopy and Scanning Electron Microscopy (SEM). The failure modes were compared and contrasted to provide guidance in determination of cause in these investigations.

How Often Are Drugs Made Available Under the Food and Drug Administration's Expanded Access Process Approved?

In this review of individual patient expanded-access requests to the Center for Drug Evaluation and Research for the period Fiscal Year 2010 to Fiscal Year 2014, we evaluated the number of applications received and the number allowed to proceed. We also evaluated whether drugs and certain biologics obtained under expanded access went on to be approved by the Food and Drug Administration. Finally, we considered concerns that adverse events occurring during expanded access might place sponsors at risk for legal liability. Overall, 98% of individual patient expanded-access requests were allowed to proceed. During the study period, among drugs without a previous approval for any indication or dosage form, 24% of unique drugs (ie, multiple applications for access to the same drug were considered to relate to 1 unique drug), and 20% of expanded-access applications received marketing approval by 1 year after initial submission; 43% and 33%, respectively, were approved by 5 years after initial submission. A search of 3 legal databases and a database of news articles did not appear to identify any product liability cases arising from the use of a product in expanded access. Our analyses seek to give physicians and patients a realistic perspective on the likelihood of a drug's approval as well as certain information regarding the product liability risks for commercial sponsors when providing expanded access to investigational drugs. The US Food and Drug Administration (FDA)'s expanded-access program maintains a careful balance between authorizing patient access to potentially beneficial drugs and protecting them from drugs that may have unknown risks. At the same time, the agency wishes to maintain the integrity of the clinical trials process, ultimately the best way to get safe and effective drugs to patients.

U.S. Supreme Court gives pharma a win

The U.S. Supreme Court has handed a victory to the pharmaceutical industry and other businesses that want to prevent plaintiffs from shopping for friendly courts to hear product liability cases. In an 8-1 ruling, the justices on June 19 overturned a California Supreme Court decision that had allowed a nationwide lawsuit against Bristol-Myers Squibb to proceed in a state court. Nearly 600 out-of-state residents had joined 86 Californians in claiming the New York-based manufacturer had misrepresented the risks of taking its blood-thinning drug Plavix. California is widely viewed as a plaintiff-friendly state. But Bristol-Myers Squibb “did not develop Plavix in California, did not create a marketing strategy for Plavix in California, and did not manufacture, label, package, or work on the regulatory approval of the product in California,” Justice Samuel Alito wrote in the majority opinion. “The nonresidents’ claims involve no harm in California and no harm to California residents,”

Parallel State Duties: Ninth Circuit Class Actions Premised on Violations of the FDCA Reporting Requirements

Recent Ninth Circuit decisions suggest the court's willingness to accommodate plaintiffs that bring product liability cases against manufacturers who fail to comply with the FDCA's adverse event reporting requirements. Moreover, the developments in federal case law explain that a manufacturer's reporting duties in such suits extend only to the FDA and not individual medical providers. This may create a degree of commonality among potential claimants such that class treatment under Fed. R. Civ. P. 23 is appropriate, but the Fairness in Class Action Litigation Act of 2017 threatens to make such an approach infeasible if passed by Congress.

A Study on the Introduction Method of Punitive Damages System

영미법과 대륙법은 손해배상법제상의 차이가 있다. 영미법계의 징벌적 손해배상제도를 대륙법계인 우리나라에서 전면적, 직접적으로는 도입하는데 있어서는 그러한 차이의 극복방안이 필요할 것이다. 피해자가 전보배상을 받았음에도 또 다시 징벌적 손해배상을 받음으로써 그 몇 배수에 해당하는 금전적 이득을 얻는 것에 대하여도 사회적 합의가 요청된다. 징벌적 손해배상제도의 장점과 단점을 면밀히 살피고 국민의 법감정과 법의식에 맞는 제도를 검토할 필요가 있다. 징벌적 손해배상의 본고장인 미국에서 조차 지나치게 고액인 징벌적 손해배상 제도의 문제점 때문에 이를 제한 및 폐지하려고 하는 움직임이 있음을 감안해 볼 때 우리나라에서도 징벌적 손해배상의 인정범위(범주) 및 금액의 무한정 ․ 무제한 확장에는 신중을 기하지 않을 수 없다. 또한 배심원제도가 없는 우리나라에서 법관이 징벌적 손해배상액의 산정에 관해 일반적인 재량을 행사하는 것은 우리 법감정 아래에서는 받아들이기 어려울 수 있다. 결국 입법과정에서 사회적 합의를 이루어 내야 할 것이다. 생각건대 참여연대의 “징벌적 배상에 관한 법률안”에서 제안하고 있는 것처럼 배액배상의 형태와 상한선폐지의 형태를 혼합하는 방안도 현실적인 대안이 될 수 있을 것 같다. 피해자가 받은 실손해의 2배정도의 상한을 두는 경우에서부터 상한을 두지 않는 이론상으로는 무한대까지 징벌적 손해배상액에 차등을 두어 세부적으로 규정하는 것이 적절하지 않을까 생각해본다.The purose of the law of torts is to compensate people who have been injured as a result of tortuous acts. In many such mass tort case involving product liability, consumer fraud, the plaintiffs generally requested punitive damages. There are two types of damages that can be awarded in product liability cases. - the compensatory damage is to compensate a victim who has suffered a loss or damage. - the punitive damage is to punish a aggressor who did harm for a victim.“punitive damages” are damages, other than compensatory or nominal amages, awarded a person to punish for his outrageous conduct and to deter him and other like him from similar conduct in the future. it can be said that punitive damages are in some sense “quasi- criminal”, standing somewhere between the civil law and criminal law. Since 1986, in respons to the argument that American punitive damages are unpredictable, unfair, and excessive, many states began to implement legislative reforms in order to scale back multiple punitive damages awards and to minimze overkill. To have consistency and uniformity in the state laws of punitive damages, the National Conference of Commissioners on Uniform States Law( NCCUSL) adopted the Model Punitive Damages Act in 1996. the Model Punitive Damages Act provides a lot of factors to be considered in determining a punitive damages awards, such as the nature of the wrongful conduct, the amount of actual damages etc. According to the 14th Amendment to US Constitution, no person shall be deprived of life, liberty or property without of process. the legal scholars and practitions from civil law countries generally reject the coctrine of punitive damages. Korea has recently enacted several statutes authorizing punitive damages. the Fair Transaction in Subscontracting Act introduced a treble damages in order to protect subcontractors, who are the weaker contracting parties than the general contractors. This interplay between the providing adequate compensation to an injured plaintiff and deterring wrongdoers underlies much of the of Torts.

The Use of Computer-Generated Animations and Simulations at Trial

Victoria Webster is senior counsel with Yamaha Motor Corporation, U.S.A. and has been overseeing product liability actions involving three and four wheel ATVs, side by side vehicles, golf cars, snowmobiles, and personal watercraft since 1986. She received her J.D., magna cum laude, from Southwestern University School of Law in Los Angeles in 1984. She is a member of both the California and Georgia bar. Trey Bourn serves as Assistant Practice Group Leader for the Product Liability, Toxic Tort, and Environmental Group at Butler Snow, LLP in its Jackson, Miss., offices. His practice is focused on representing clients in the areas of recreational vehicles, watercraft, automobiles, and other machinery-related product liability cases. He also focuses his practice on drug and medical device litigation. Trey earned his J.D. from the University of Mississippi, where he served as Editor-in-Chief of the Mississippi Law Journal. The authors would like to thank Carol T. Montgomery and Caroline D. Walker, both attorneys in the Birmingham office of Butler Snow LLP, for their invaluable efforts in putting together this paper. ********** A computer is not a gimmick and the court should not be shy about its use, when proper. Computers are simply mechanical tools--receiving information and acting on instructions at lightning speed. When the results are useful, they should be accepted, when confusing, they should be rejected. What is important is that the presentation be relevant to a possible defense, that it fairly and accurately reflect the oral testimony offered and that it be an aid to the jury's understanding of the issue. (1) INCREASINGLY, computer-generated and simulations are being used in courtrooms across the country. Although and simulations can assist jurors in understanding complex issues, they can also distract from and distort the facts of a case. recognition of the power these new evidentiary tools can hold over jurors, courts have erected barriers to admission of this evidence in order to ensure that such evidence helps, more than it hurts, the fact-finder's search for the truth. Courts first review the evidence to determine whether it is animation or simulation, as standards for admissibility differ for each. Since expert testimony frequently provides the vehicle for animation and simulation admission, challenges to this evidence often should be made in the context of Daubert motion practice. Evidence of this type often is created in the latter stages of trial preparation, and therefore timeliness objections are frequently made (though they are rarely successful). Courts nearly always employ cautionary instructions that attempt to blunt the force of effective and simulations. I. Animation or Simulation? Computer-generated evidence can be categorized as demonstrative or substantive evidence, and the distinctions between the two are very important. Computer-generated animations are generally considered to be demonstrative evidence and can be thought of as visual aids used in support of witness testimony. (2) Their purpose is to help the jury understand a witness's testimony, and they do not purport to be scientific recreations of an actual event. (3) To the extent that do recreate events, they can only do so in furtherance of visually representing a witness's belief about what transpired. (4) An animation has only secondary relevance and must rely on other material testimony for relevance. (5) contrast, simulations are considered substantive evidence and are computer-generated models or reconstructions based on scientific principles. (6) Simulations are created by entering data and engaging in computer-assisted analysis in accordance with widely accepted methodology. (7) Rather than depicting a witness's testimony in the manner of an animation, simulations form conclusions based on raw data: In a simulation, data is entered into a computer which is programmed to analyze the information and perform calculations by applying mathematical models, laws of physics and other scientific principles in order to draw conclusions and recreate an incident. …